Center for Biological Diversity v. Hagel
80 F. Supp. 3d 991
N.D. Cal.2015Background
- Plaintiffs: three Japanese individuals and four environmental organizations challenge DoD’s decision-making about constructing the Futenma Replacement Facility (FRF) — two runways on landfill at Henoko Bay, Okinawa — citing harm to the critically endangered Okinawa dugong.
- History: U.S. and Japan agreed in 2006 (the Roadmap) to relocate MCAS Futenma to Camp Schwab; Japan approved a landfill permit in 2013 and construction activity began by 2014.
- Earlier proceedings: In 2008 the district court (Patel, J.) held DoD violated NHPA §402’s “take into account” requirement and ordered DoD to comply; the case was later administratively closed while the agencies completed NHPA process.
- Present claims: Plaintiffs seek (1) declaratory judgment that DoD’s NHPA findings were arbitrary and capricious under the APA, (2) to set aside those findings, and (3) an injunction halting FRF construction until NHPA compliance.
- Government motion: Defendants move to dismiss under the political question doctrine, arguing judicial interference with an apex foreign-policy/national defense decision (siting/building an overseas U.S. military facility) is non-justiciable.
- Decision: Court (Chen, J.) grants dismissal with prejudice — injunctive claim is barred by the political question doctrine; declaratory and vacatur claims are non-justiciable for lack of Article III redressability because any procedural remedy would not prevent construction already committed by both nations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability under the political question doctrine as to declaratory/vacatur relief (NHPA/APA challenge) | Plaintiffs: NHPA is a procedural statute; court can review whether DoD’s process complied with NHPA/APA without intruding on foreign policy | DoD: Reviewing NHPA findings would necessarily interfere with Executive foreign-policy and national defense prerogatives; political question doctrine bars review | Court: Declaratory/vacatur claims are not barred by political question doctrine (applying Baker factors); APA review is a familiar judicial task |
| Justiciability as to injunctive relief halting FRF construction | Plaintiffs: Injunction could be limited to DoD’s procedural obligations (consultation/process) and need not halt construction entirely | DoD: An injunction would lack judicially manageable standards and would intrude on foreign policy, alliance commitments, and military decisions | Court: Injunctive claim presents a non-justiciable political question; lack of judicially discoverable/manageable standards and other Baker factors support dismissal |
| Standing/redressability for declaratory and vacatur claims | Plaintiffs: Procedural remedy (requiring DoD to redo NHPA process) could influence agency action and protect dugong habitat | DoD: Even if NHPA process were redone or Findings set aside, the FRF decision is final between U.S. and Japan; court order would not change construction outcome | Court: Plaintiffs lack Article III redressability — declaratory/vacatur would not prevent construction or redress injury, so claims dismissed for lack of standing |
| Scope of NHPA §402 and judge’s role reviewing compliance | Plaintiffs: Court can apply APA arbitrary-and-capricious standard to assess adequacy of DoD’s “take into account” process | DoD: NHPA in foreign, diplomatically sensitive context requires political judgment beyond courts | Court: NHPA is procedural; courts have manageable standards to review procedural compliance under APA, but redress constraint bars relief here |
Key Cases Cited
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishes judicial duty to decide cases and the origin of political question concerns)
- Baker v. Carr, 369 U.S. 186 (1962) (six-factor test for political question doctrine)
- Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (clarifies narrow application of political question doctrine and focuses on first two Baker factors)
- Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) (courts should not avoid statutory interpretation merely because decision has political overtones)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard under APA)
- Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) (careful, claim-by-claim application of political question doctrine in foreign-affairs contexts)
- El-Shifa Pharmaceutical Indus. Co. v. U.S., 607 F.3d 836 (D.C. Cir. 2010) (foreign policy and national security matters are often non-justiciable)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (procedural-claim redressability: setting aside flawed agency consultation cannot undo a treaty or other final executive act)
- Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010) (declinature of declaratory relief where relief cannot redress ongoing injury because independent actor retains discretion)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements: injury-in-fact, causation, and redressability)